Celebrating the 40th Anniversary of Title VII

Panel II - Wednesday, June 23, 2004

Expanding the Reach - Making Title VII Work for Women and National
Origin Minorities: Pregnancy, Harassment, and Language Discrimination

Although the Civil Rights Act was forged principally as a response
to compelling demands for racial justice and equality, from its
inception it also prohibited discrimination on the basis of religion,
sex, and national origin. The early precursors to Title VII – the
executive orders prohibiting discrimination by federal contractors – also
had prohibited discrimination on the bases of race, color, and creed, and
prior civil rights bills had been introduced that would have banned
discrimination on the bases of sex, ancestry, and union membership.

The inclusion of sex as a prohibited basis in Title VII presents a
classic example of the working of the democratic process in which
diverse individuals may vote for a measure for a variety of reasons,
with consequences expected by none. The conventional view is that a
southern opponent of civil rights legislation introduced the "sex
amendment" in hopes of derailing passage of the Civil Rights Act.
The proposal to include sex originated with the National Women's Party,
which had been lobbying for the Equal Rights Amendment since 1923, and
which had sought to include sex in every civil rights bill considered by
Congress for forty years. The NWP asked Congressman Howard Smith of
Virginia to introduce the amendment because he had been a friend and
supporter of the ERA, and he apparently agreed to do it because he
believed sex discrimination was a serious problem. While the NWP
equated race and sex discrimination, many people did not make that
connection.(1)ERA opponents, such as Esther Peterson, Deputy Secretary
of Labor and head of the Women's Bureau, acknowledged that women
experienced discrimination in employment but agreed with the conclusion
of the President's Commission on the Status of Women in 1963,
that "discrimination based on sex . . . involved problems sufficiently
different from discrimination based on other factors listed to make
separate treatment preferable."(2) Peterson and other feminists who had
fought for protective legislation for women opposed the ERA and initially
opposed inclusion of sex in Title VII because they feared the principle of
equal treatment would undermine the few gains women had made. But by
the time Title VII went to the Senate, President Johnson, Peterson, and
various women's groups had all rallied to support the bill with sex included.

Members of Congress, who had listened to Esther Peterson's presentations
for two years before passing the Equal Pay Act of 1963, were inclined
to believe that women faced real discrimination in employment; women
in Congress were convinced by the derisive laughter of their male
colleagues, if nothing else, that including sex was both appropriate and
necessary. Thus, the statute was enacted with the prohibition of sex
discrimination included. Since sex was removed from all the other titles
of the Civil Rights Act, it seems safe to say that a majority in Congress
thought discrimination against women in the workplace was a real concern
that justified legislative action. But it also seems safe to say that few
who were considering the wisdom of outlawing sex discrimination in 1963-64
could have foreseen where the amendment would lead.

In the first year after enactment, one-third of charges filed with the
EEOC alleged sex discrimination. Title VII was definitely born out of
the racial tension of the time, but the unexpected inclusion of sex in
the statute quickly led women workers and the newly emerging women's
movement of the late 1960's to take advantage of the opportunity to pursue
equality in the courts.

In early cases such as Weeks v. Southern Bell Telephone & Telegraph Co.
and Rosenfeld v. Southern Pacific Co., courts invalidated the restrictive
state protective legislation that limited women to jobs that did not require
lifting over 25-30 pounds, and opened up new job opportunities for women.
Women used disparate impact theory successfully to challenge height and
weight requirements for other jobs traditionally held by men in
Dothard v. Rawlinson, although the Court ruled in favor of the Alabama
prison system on its asserted bona fide occupational qualification (BFOQ)
defense. Women challenged denial of benefits for pregnancy and when the
Supreme Court decided in General Electric v. Gilbert that such exclusions
are not sex-based and cannot even be challenged as neutral practices that
impact on sex, women quickly organized to petition Congress for recognition
that discrimination on the basis of pregnancy is gender-based discrimination.
Congress swiftly responded by passing the Pregnancy Discrimination Act of 1978.
Women's advocates also used Title VII to seek redress for harassment in the
workplace and the Supreme Court agreed in Meritor v. Vinson that sexual
harassment, whether of the quid pro quo or hostile environment variety,
if it is sufficiently severe or pervasive, constitutes discrimination in
working conditions on the basis of sex.

National Origin

The legislative history on the inclusion of national origin as a
protected basis in the Civil Rights Act of 1964 is quite meager.
That history defines national origin only in one remark by Congressman
Roosevelt, Chairman of the House Subcommittee which reported the
bill: "It means the country from which you or your forebears came. . . . You
may come from Poland, Czechoslovakia, England, France, or any other
country."(3) Because the United States is uniquely a nation of immigrants,
it is not surprising that civil rights legislation would naturally protect
individuals from discrimination on the basis of their ancestry or country of
origin. One reason there may have been little debate or dissension over
inclusion of national origin is that since 1943, various executive orders
had expressly prohibited discrimination on the basis of national origin in
Federal Government employment, so there was a disposition to view such
discrimination as contrary to the nation's founding principles.(4)

For a variety of reasons related to the unique historical circumstances of
immigrant populations, there have traditionally been fewer charges
filed with the EEOC alleging national origin discrimination than
discrimination on other bases. The cases that have challenged national
origin discrimination have followed the disparate treatment and disparate
impact proof theories used in race and sex cases. One early question
about the scope of Title VII's prohibition of national origin
discrimination was whether it extended to protect individuals from
discrimination on the basis of United States citizenship. The Court
concluded that citizenship requirements do not constitute disparate
treatment or have a disparate impact on national origin minorities in
Espinoza v. Farah Manufacturing Co.

On the other hand, the Court clearly held, in Espinoza in 1973, and again
in Hoffman Plastics v. NLRB in 2002, that the protections of Title VII
extend to noncitizens employed in the United States. Another recurrent
issue of unique concern to national origin minorities is employer policies
that prohibit them from speaking their native language in the workplace.
Although such cases do not often reach the courts of appeals, the few courts
to consider such claims have rejected arguments that English-only rules
constitute disparate treatment or have a disparate impact on national
origin minorities. In one leading case, Garcia v. Spun Steak, the Ninth
Circuit said that such restrictions have no discriminatory effect on
persons who are bilingual. Other courts have recognized the disparate
impact of such rules, but have accepted the employers' asserted business
reasons for such rules–concerns with safety, workplace harmony or
civility, or ease of supervision–as legitimate.

Title VII's protections have sometimes been thought to be in tension with
the policies underlying our nation's immigration laws and policies. For
example, the Immigration Reform and Control Act (IRCA), the 1986 amendment
to the Immigration and Nationality Act, included sanctions for employers who
knowingly hired undocumented workers. In Hoffman Plastics the Court
concluded that, although undocumented workers are covered by the National
Labor Relations Act, it would undermine the immigration policies reflected
in IRCA to allow the NLRB to award back pay relief to undocumented workers
for violations of the NLRA. Courts are beginning to consider whether the
same policies should limit remedies under Title VII as well.

1 See generally Jo Freeman, "How ‘Sex' Got Into Title VII: Persistent
Opportunism as a Maker of Public Policy," Law and Inequality" A Journal
of Theory and Practice, Vol. 9, No. 2 (March 1991).

2 Id. at n.45, quoting Margaret Mead and Frances Balgley Kaplan,
American Women: The Report of the President's Commission on the
Status of Women and Other Publications of the Commission, at 49 (1965).